Rekha Basu commentary: Business owners of every faith can now discriminate

Saturday

Jul 5, 2014 at 12:01 AMJul 5, 2014 at 10:52 AM

Let's say that I'm an observant Hindu who keeps a strict vegetarian diet because my religion frowns on killing animals. And let's say I own a software company that employs only vegetarians, because I don't believe I should be forced to subsidize meat-eating with the money I pay in salaries. Could I get away with that that sort of discrimination?

Let’s say that I’m an observant Hindu who keeps a strict vegetarian diet because my religion frowns on killing animals. And let’s say I own a software company that employs only vegetarians, because I don’t believe I should be forced to subsidize meat-eating with the money I pay in salaries. Could I get away with that that sort of discrimination?

Apparently I could, if you follow the U.S. Supreme Court’s logic in a ruling Monday that a company should not be forced to subsidize an activity that offends its owners’ religious beliefs. The court ruled that Hobby Lobby and Conestoga Wood Specialties Corp. may be exempted from the federal government’s mandate that for-profit corporations’ employee health plans cover all 20 types of contraception. Their Christian owners believe life begins at conception and oppose four contraceptive methods that interfere with implantation of a fertilized egg. It makes no difference under the ruling if the employee shares those beliefs, or even that religion. “It is not for the court to say that the religious beliefs of the plaintiffs are mistaken or unreasonable,” wrote Justice Samuel Alito in his majority opinion.

The impact of the ruling has been analyzed mostly through the prisms of birth control and the Affordable Care Act. But the implications of allowing private companies to opt out of certain laws for religious reasons are sweeping and dangerous. If a company can dictate how employees spend their salary or benefits according to its owners’ religious beliefs, at what point does religious accommodation of an employer end and religious discrimination against employees begin?

The court should have left religious exemptions to religious and nonprofit organizations.

The court majority tried to tailor its ruling to “closely held” corporations and certain types of contraception. But the rationale could become precedent in ways that even Christian groups hailing the ruling in the name of religious freedom would take serious issue with. What if a conservative Muslim or Hasidic Jewish business owner believes women and men should not work in close physical proximity to each other, so it won’t hire women?

“Although the court attempts to cabin its language to closely held corporations, its logic extends to corporations of any size, public or private,” Justice Ruth Bader Ginsburg wrote in a dissenting opinion. “Little doubt that RFRA — the 1993 Religious Freedom Restoration Act the majority opinion cited — claims will proliferate, for the court’s expansive notion of corporate personhood — combined with its other errors in construing RFRA — invites for-profit entities to seek religion-based exemptions from regulations they deem offensive to their faith.”

It seems unlikely the court would have been as accepting of a case brought by employers from minority religions such as Judaism, Islam or Hinduism. But this ruling allows business owners of any faith to claim religious exemptions. “In a decision of startling breadth, the court holds that commercial enterprises, including corporations, along with partnerships and sole proprieterships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs,” wrote Ginsburg.

The ruling probably will be used to justify anti-gay business policies such as those of the Gortz Haus in Grimes, Iowa, whose owners claimed the Iowa Civil Rights Commission was forcing them to violate their religious beliefs by accommodating a same-sex wedding. Ginsburg cited the case of a New Mexico photographer refusing to photograph a lesbian couple’s commitment ceremony for religious reasons. And in a Minnesota case, the born-again Christian owners of health clubs cited biblical objections to employing people who live together unmarried, as well as “fornicators and homosexuals.”

“Would RFRA require exemptions in cases of this ilk?” asked Ginsburg’s dissent. “And if not, how does the court divine which religious beliefs are worthy of accommodation, and which are not?” Under the Constitution’s Establishment Clause, the government can’t play favorites with religions.

The court’s conservative majority may have thought it was protecting the religious rights of Christian-owned companies by contradicting an earlier ruling that upheld the firings and denial of unemployment benefits to two Native Americans who used peyote — illegal in Oregon — as part of their religious ceremony. That ruling said, “An individual’s religious beliefs (do not) excuse him from compliance with an otherwise valid law prohibiting conduct that the state is free to regulate” In this case, as Ginsburg pointed out, the Affordable Care law is being broken.

Much as some might wish otherwise, America is a pluralistic nation without a state religion, and the government is not allowed to pick and choose which religions can claim certain rights or exemptions. The ironic result of this wrongheaded ruling may be that business owners of every faith will claim a religious right to discriminate, in decisions from health coverage to employment to buying, selling and accommodations. That’s a long way from how the Founders conceived of religious freedom.

Rekha Basu is a columnist for the Des Moines Register.

rbasu@dmreg.com

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